Com. v. Croom, D. ( 2021 )

J-S04033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL C. CROOM :
:
Appellant : No. 829 MDA 2020
Appeal from the PCRA Order Entered May 7, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001238-2015
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 05, 2021
Daniel C. Croom (“Croom”) appeals from the Order dismissing his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Croom was charged with various offenses after being accused of
physically abusing one of his children (“the victim”) in September of 2014. On
the morning of Croom’s scheduled jury trial on February 23, 2016, Croom
stated that he wished to tender a guilty plea, pursuant to an agreement with
the Commonwealth. As part of his guilty plea colloquy, Croom admitted to
committing simple assault, and conspiracy to commit endangering the welfare
of children. See N.T., 2/22/16, at 8-15 (wherein the trial court asks Croom
whether he had committed the above-referenced offenses, and Croom
answers in the affirmative). However, after Croom admitted to committing
the offenses, Croom refused to agree to the portion of the plea agreement
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restricting contact with the victim’s mother, with whom he has other children,
during his probation. See id. at 13-15. Accordingly, the trial court vacated
Croom’s guilty plea, and he proceeded to the scheduled jury trial.
Following the jury trial, Croom was convicted of two counts of simple
assault, and one count each of endangering the welfare of a child, conspiracy
to commit endangering the welfare of a child, and conspiracy to commit simple
assault.1 On the same day, the trial court sentenced Croom to an aggregate
term of four to thirteen years in prison, followed by ten years of probation.
On direct appeal, this Court affirmed Croom’s judgment of sentence. See
Commonwealth v. Croom, 159 A.3d 999 (Pa. Super. 2016) (unpublished
memorandum).
On December 8, 2017, Croom filed the instant pro se PCRA Petition. In
his Petition, Croom asserted various claims of ineffective assistance of
counsel. The PCRA court appointed Croom counsel, who subsequently filed a
Petition to withdraw and a “no-merit” letter pursuant to Turner/Finley.2 On
June 8, 2019, the PCRA court granted PCRA counsel’s Petition to withdraw.
On January 8, 2020, the PCRA court issued Notice of its intent to dismiss
the Petition pursuant to Pa.R.Crim.P. 907. On January 27, 2020, Croom filed
a pro se request for a hearing “for refutation of such claims.” See Response,
____________________________________________
1 18 Pa.C.S.A. §§ 2701(a)(1), (3), 4303(a)(1), 903(a)(1).
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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1/27/20. The PCRA Court dismissed Croom’s Petition on April 5, 2020. Croom
filed a timely pro se Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
Croom raises the following issue for our review:
Whether the [PCRA] court abused its discretion in refusing to grant
[Croom] an evidentiary hearing, on his pro se [PCRA Petition], in
which [Croom] asserted an ineffective assistance of counsel claim
for failing to move for the recusal of the trial judge, where the trial
judge was privy to information presented during [Croom]’s guilty
plea colloquy, vacated, then used during [Croom]’s sentencing
after [Croom] was convicted by a jury?
Brief for Appellant at 3.
Croom argues that the PCRA court erred in dismissing his PCRA Petition
without a hearing. Id. at 6-9. Specifically, Croom asserts that the PCRA court
should have held a hearing on his claim that trial counsel rendered ineffective
assistance in failing to move for recusal of the trial judge based on potential
bias. Id. at 8-9. Croom claims that the trial judge improperly allowed
information gleaned from Croom’s aborted guilty plea colloquy to color its
sentencing of Croom. Id. at 7-8. Croom contends that the trial judge
improperly referenced Croom’s guilty plea colloquy during sentencing. Id. In
support, Croom directs our attention to the trial judge’s statement, at
sentencing, that the court had “taken into account the testimony that [it]
heard in not only the trial these last two days, but in previous proceedings.”
N.T., 2/23/16, at 144 (emphasis added).
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Our review of the record discloses that Croom did not raise this claim in
his pro se PCRA Petition. Rather, in his PCRA Petition, Croom asserted the
following:
Ineffective assistance of counsel [in that] or [sic] my public
defender did not properly delve into [Berks County Children and
Youth Services (“CYS”)] records to find case workers notes about
[the victim’s] behavior. My pubic [sic] defender never subpoena
[sic] case workers Pam Bradley and Argentina Bancos. Public
defender never objected to my sentence or the stipulations where
there are errors. Public Defender never called a prima facie
violation. Direct appeal public defender did not show supporting
facts to show the Judge errd [sic] in his statements at sentencing.
PCRA Petition, 12/8/17, at 4 (some capitalization omitted). Further, Croom
stated that he intended to argue on appeal the following:
Ineffective assistance of counsel, Public Defender did not
investigate case. Did not call key witnesses. Failed to investigate
Defense or Evidence. Public Defender did not object to sentence
or stipulations at sentencing[.] Public Defender did not obtain
records from CYS, from Argentina Bancos and Pam Bradley.
Id. (some capitalization omitted).
Moreover, PCRA counsel did not identify Croom’s instant issue in her
Turner/Finley letter. There, PCRA counsel identified and analyzed the issues
that Croom wished to pursue in his PCRA Petition, based on Croom’s pro se
PCRA Petition and counsel’s subsequent correspondence with Croom. Croom’s
instant issue is not included therein. See Turner/Finley Letter, 6/6/19, at
2-3.
Consequently, the PCRA court did not address Croom’s claim in its
Pa.R.Crim.P. 907 Notice of intent to dismiss the PCRA Petition. See Notice of
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Intent, 1/8/20, at 1-10. Further, in its Pa.R.A.P. 1925(a) Opinion, the PCRA
court stated the following:
While [Croom] does raise various claims of ineffective assistance
of counsel, including for failure to object to [Croom]’s sentence
and stipulations, the claim that trial counsel was ineffective for
failing to seek reclusion of this jurist was not included in either the
pro se [PCRA P]etition or in PCRA counsel’s review. Likewise,
though [Croom] raises a challenge to the discretionary aspects of
sentence, the claim that this court’s pretrial colloquy with [Croom]
somehow created unintentional bias that, along with our failure to
consider mitigating factors, amounts to an abuse of th[e trial]
court’s discretion is a novel argument first seen in the [Concise
Statement].
***
Even if the [PCRA c]ourt were to find that [Croom]’s claims
of error have not been waived, th[e PCRA] court’s review of the
[Concise Statement] reveals that the alleged errors are too vague
to allow for adequate response. While [Croom] states the general
claim of ineffective assistance of counsel and a challenge to the
discretionary aspects of the sentence, he fails to indicate what
information was disclosed to the [trial] court that would have
created any unintentional bias or how th[e trial] court’s colloquy
of [Croom] led to the alleged abuse of discretion. We are well
aware that a [Concise Statement] must be detailed enough so that
the judge can write a Rule 1925(a) [O]pinion, but not so lengthy
that it does not meet the goal of narrowing down the issues
previously raised to the few that are likely to be presented to the
appellate court without giving the trial judge volumes to plow
through. As such, we don’t expect that a concise statement of
errors would be so granular as to present each argument.
However, [] a [Rule] 1925(b) statement which is too vague to
allow the court to identify the precise issue raised on appeal is
equivalent to no statement at all. [Croom] identifies the issue
raised, but fails to provide this court with sufficient information as
to the basis of the claim to adequately address the issue.
Consequently, even if [Croom]’s issues are not waived for failure
to present the issues before the PCRA court, we would likewise
find that the [Concise S]tatement is too vague for meaningful
review.
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PCRA Court Opinion, 7/30/20, at 5-6 (citations and quotations omitted).
Because Croom did not raise in his PCRA Petition the issue of counsel’s
ineffectiveness in failing to move for the trial judge to recuse himself, we
conclude that this issue has been waived. See Pa.R.A.P. 302(a) (stating that
an issue may not be raised for the first time on appeal); see also
Commonwealth v. Lambert, 797 A.2d 232, 240-41 (Pa. 2001) (stating that
“claims … not raised in appellant’s PCRA petition … are waived.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/05/2021
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